CEDH · CASELAW;CLIN;ENG — 16 mai 2024

.s3ABFC313 { font-size:10pt } .sD4B5322E { margin-top:12pt; margin-bottom:12pt; text-align:justify } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s65B66A85 { margin-top:12pt; margin-bottom:12pt } .s97EB40D9 { margin-top:12pt; margin-bottom:14pt; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } .s8B6C6D43 { margin-top:0pt; margin-bottom:0pt; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } Legal summary May 2024 Domenjoud v. France - 34749/16 and 79607/17 Judgment 16.5.2024 [Section V] Article 5 Article 5-1 Deprivation of liberty Preventive home-curfew orders constituting a restriction of liberty issued against applicants suspected of potential participation in violent actions during the COP21 summit: inadmissible Article 15 Derogation in time of emergency   Preventive home-curfew order, issued against one of the two applicants suspected of potential participation in violent actions during the COP21 summit, under state-of-emergency legislation enacted following terrorist attacks: not covered by derogation Article 2 of Protocol No. 4 Article 2 para. 1 of Protocol No. 4 Freedom of movement Preventive home-curfew order issued – under state-of-emergency legislation enacted following terrorist attacks – against two applicants suspected of potential participation in violent actions during the COP21 summit: no violation, violation Facts – Following Islamist terrorist attacks in the Paris region during the night of 13 to 14   November 2015, a state of emergency was declared in accordance with the Law of 3   April 1955. It was extended six times before terminating on 1   November 2017. On 24   November 2015 France informed the Council of Europe that it was exercising its right of derogation from the Convention, as provided for in Article   15. The 21st Conference of the Parties to the United Nations Framework Convention on Climate Change (“COP21”) was held in Le   Bourget and Paris from 30   November to 12   December 2015. Preventive measures were taken to ensure security at the summit, which would be attended by many heads of State. The applicants, two brothers, were placed under home curfew from 26   November to 12   December 2015 by order of the Minister of the Interior on the basis of section   6 of the Law of 3   April 1955. For those sixteen days they were required to stay within their local municipalities, not to leave their homes between 8   p.m. and   6 a.m. and to report three times a day to a police station, failing which they would be sent to prison. The Minister of the Interior justified his decision by the need to ensure security at the COP21 event, against the backdrop of a serious terrorist threat and of violent incidents by “black bloc” activists at other major events in neighbouring countries in 2015. It was based on information from the intelligence services that activists were preparing violent protests around the summit and that the two applicants were likely to take part. The applicants lodged various appeals against the measures with the administrative courts, but were unsuccessful. In his submissions for those proceedings the Minister of the Interior produced “white notes” ( notes blanches ). These unsigned and sometimes undated documents, in which any particulars that might serve to identify the authors or sources had been redacted, were made and used by the intelligence services to impart information to other authorities. Law – Article   5: The Court pointed out that it had previously been called upon to adjudicate on measures taken in accordance with section   6 of the Law of 3   April 1955 and had found that they constituted a restriction of liberty (see Pagerie v.   France and Fanouni v.   France ). In the present case, the Court considered that the applicants’ placement under home curfew had to be regarded as a mere restriction of liberty on account not only of the duration of the measure but also of its effects and varied forms of implementation. More specifically, the applicants had not been deprived of the ability to have a social life and maintain relations with the outside world; the prohibition on leaving their homes at night had not been harsh enough to be characterised as “a deprivation of liberty”; and they had been able to request permission to leave their designated municipalities temporarily. Conclusion : inadmissible (incompatible ratione materiae ). Article   2 of Protocol No.   4: The restriction of freedom of movement in issue had to be examined in the light of Article   2 §   3 of Protocol No.   4. It pursued the legitimate aims of protecting national security and public safety and of maintaining ordre public . (1) Foreseeability of the law – In the Pagerie and Fanouni cases, the Court had found that section   6 of the Law of 3   April 1955 met the requirement of foreseeability of the law. However, both those cases had concerned measures to prevent terrorism, the justification for which had been the same as that used to declare the state of emergency in France. The Court had never ruled on the matter that the applicants were challenging – namely, the fact that the section in question, as it had been interpreted by the Conseil d’État in the present case, could be used to place someone under home curfew for reasons that differed from those justifying the declaration of the state of emergency. The Court had to determine whether the discretion granted to the Minister of the Interior in issuing home-curfew orders was sufficiently circumscribed and whether his decisions were subject to appropriate scrutiny. First, the domestic authorities were not entitled to use state-of-emergency legislation to restrict freedoms if such measures had no link to the circumstances justifying its enactment; to proceed otherwise would be to breach the requirement of foreseeability of the law. However, in an emergency situation those authorities might be obliged to make operational choices in order to meet the full range of their responsibilities. There could be an indirect link between the aim pursued when declaring a state of emergency, and the justification for measures taken on the basis thereof, provided that it was strong enough to eliminate any possibility of abuse. In the present case, the Court considered that the case-law clarifications provided by the Conseil d’État and the Constitutional Council on the scrutiny of the administrative courts were such as to prevent the state of emergency from being misused. Second, the domestic law provided for judicial scrutiny of both the lawfulness and the proportionality of home-curfew measures taken in the context of a state of emergency. Such scrutiny could be obtained at very short notice through an urgent application for the interim protection of a fundamental freedom ( référé-liberté ). In these circumstances the Court considered that the legal basis of the measures in issue had been foreseeable. (2) Necessity of the restriction in issue and implementation of safeguards against arbitrariness – The home-curfew orders had primarily aimed to prevent police confrontations and damage within the framework of security arrangements for an international summit. They had had no direct link to the fight against terrorism. (a) Whether the measure taken against the first applicant had been necessary – (i) Procedural safeguards – The first applicant had been afforded judicial scrutiny in respect of both the lawfulness and the proportionality of the impugned measure, and in particular as to whether the risk relied on by the Minister of the Interior had been genuine. With regard to the weight attached to the “white notes” produced by the Minister, the Court had noted in the Pagerie and Fanouni cases that the domestic law provided for three sets of safeguards in this area: (i)   such documents had to be subject to adversarial proceedings; (ii)   the administrative courts had a duty to review the accuracy and precision of their content, by ascertaining whether they contained precise and detailed facts and whether or not those facts were seriously disputed; and (iii)   the administrative courts had investigative powers to perform that review. The “white notes” produced in the present case had provided detailed allegations regarding the first applicant’s actions and behaviour. He had not asked the domestic courts to make use of their investigative powers; he had merely denied the allegations before the urgent-applications judge, without attempting to establish their inaccuracy. Lastly, he had not lodged an appeal on the merits. Adequate procedural safeguards had thus been in place for the judicial scrutiny of the applicant’s placement under home curfew. (ii) Assessment of the risk – The Court did not underestimate the nature of the risk against which the domestic authorities had been seeking to provide protection. They had had credible information that there was a high risk of violent disruptions and vandalism at COP21. The Court considered that the domestic authorities had had legitimate reasons to believe, in the light of the first applicant’s behaviour and criminal record, that there had been a serious risk that he would take part in violent protests during COP21. In this regard, it referred to the “white notes” produced before the domestic courts, which were particularly detailed. The Court had no objective evidence in the present case that might lead it to suspect that the public authorities had misused their powers or had any hidden intentions. (iii) Whether there had been an adequate link with the context of the state of emergency and whether the measure had been proportionate – The risk of disturbance identified by the authorities had been sufficiently large and serious as to require a significant number of police officers to be assigned to security at COP21. It did not seem unreasonable to consider that the pressure on the police had been such as to put the authorities in serious difficulty with regard to their duty to prevent terrorism, given the considerable number of sites and individuals to be protected. Furthermore, the measure had been ordered only days after the 13   November 2015 attacks, at a time when protecting the population had undoubtedly been a pressing need and when large gatherings had been particularly exposed to the terrorist threat. In those highly specific circumstances, the Court found that there had been an adequate link with the context of the state of emergency. In addition, the measure had been relatively short and had ended at the same time as the summit. The Court considered that it had been based on relevant and sufficient reasons and on specific aspects of the first applicant’s behaviour and criminal record, which had pointed to a serious risk of involvement in highly violent disruptions. In view of all the foregoing considerations, and taking into account the margin of appreciation afforded to the domestic authorities, the Court considered that the measure taken against the first applicant had not been disproportionate to the aims pursued. Conclusion : no violation (unanimously). (b) Whether the measure taken against the second applicant had been necessary – (i) Procedural safeguards – Neither the reasons for the impugned ministerial order nor the “white notes” produced before the domestic courts had indicated what actions or behaviour had led the Minister of the Interior to consider that the second applicant had been likely to take part in violent protests. Yet those factual elements were all the authorities had produced before the domestic courts. Such a deficiency of information called for strong counterbalancing safeguards. Having regard to the proceedings as a whole, the Court considered that the failure to provide the second applicant with sufficient information had not been counterbalanced such as to preserve the very essence of his procedural rights. (ii) Assessment of the risk and proportionality of the measure – Nothing in the “white notes” indicated that the second applicant was a violent activist who had previously taken part in violent protests or had envisaged doing so or helping to organise them. It did not appear to the Court that the preventive home-curfew measure taken against him had been the result of an individual and detailed assessment of his behaviour or actions that had made it possible to substantiate the risk that he might contribute to the disruptions feared by the domestic authorities. His radical political opinions were not sufficient in the present case to substantiate such a risk, and the fact of being related to a person likely to commit offences was not enough to justify a preventive measure. The measure had not therefore been “necessary in a democratic society” within the meaning of Article   2 §   3 of Protocol No.   4. The Court next examined whether the measure had been covered by the derogation notified by France under Article   15. (3) Application of Article   15 of the Convention (second applicant) – Freedom of movement did not feature among the non-derogable rights. Accordingly, Article   15 applied. The threat of a terrorist attack had been so significant that at the relevant time it amounted to a public emergency threatening the life of the French nation. The Government had therefore been justified in exercising their right of derogation. Regarding the validity of the derogation notice, the Court was prepared to accept that the formal requirements had been satisfied in the present case. As to whether the measure had been “strictly required” within the meaning of Article   15 §   1, French domestic law at the relevant time did not provide for an individual preventive measure that could restrict the freedom of movement of individuals who might be a threat to public safety and order outside the framework of a state of emergency. Given the scale of the terrorist threat and the pressing need to ensure the population’s safety, the domestic authorities could reasonably have considered that the ordinary legislation did not provide adequate means to address the situation. However, the Government had indicated that the state of emergency had been declared because of the seriousness of the terrorist threat and “to prevent the commission of further terrorist attacks”. In the Court’s view, these reasons were of decisive importance. It considered that only measures with a sufficiently strong link to the aim pursued by the derogation could be covered by it. To find otherwise would be to deprive of useful effect the obligation to provide information under Article   15 §   3. The Government had not convincingly shown that the second applicant’s placement under home curfew had been ordered as part of the fight against terrorism or that it had been strictly required by the situation within the meaning of Article   15 §   1. The measure was not therefore covered by the French derogation. Conclusion : violation (six votes to one). Article   41: EUR   1,500 to the second applicant in respect of non-pecuniary damage. (See also A. and Others v.   the United Kingdom [GC], 3455/05, 19   February 2009, Legal Summary ; De   Tommaso v.   Italy [GC], 43395/09, 23   February 2017, Legal Summary ; Muhammad and Muhammad v.   Romania [GC], 80982/12, 15   October 2020, Legal Summary ; Rotaru v.   the Republic of Moldova , 26764/12 , 8   December 2020; Pagerie v.   France , 24203/16, 19   January 2023, Legal Summary ; Fanouni v.   France , 31185/18 , 15   June 2023)   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. To access legal summaries in English or French click here . For non-official translations into other languages click here .